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Jonathan Bernstein: Judging Trump and judges

Jonathan Bernstein is a Bloomberg View columnist. (Submitted)

Let’s get some facts out there about President Trump and judges.

Trump continues to brag about his nomination of Neil Gorsuch to the Supreme Court. That’s fair enough; it’s almost certainly his biggest accomplishment to date, and certainly so if we’re just talking about things he got through Congress (or, in this case, the Senate).

That said, it’s not exactly an unprecedented accomplishment. Filling Supreme Court vacancies is almost entirely a function of opportunity, and Trump was the rare president to inherit an opening (because normally the Senate either easily confirms the previous president’s selection or works out a deal for a more acceptable option). In other words, Gorsuch is far more Senate Majority Leader Mitch McConnell’s accomplishment, not Trump’s.

Plenty of Supreme Court nominations have gone south entirely or disappointed the president’s supporters in some way, so again, fair enough for Trump to take credit that this nominee has not done so yet. Let’s just not get carried away.

Meanwhile, Trump is complaining again about Democratic obstruction against his other judicial picks. Kellyanne Conway went on Twitter to complain that Trump has had only four circuit or district court nominees confirmed so far, comparing that number both to (full) first-year numbers from recent presidents and, in one of those over-the-top claims that make it so easy to just assume everything the administration says is a lie, comparing Trump’s seven-month record to the four- or eight-year records of recent presidents. Uh huh.

Democrats are foot-dragging. But there’s not all that much they can do, and besides if any party has a right (and almost a responsibility) to engage in some delay over a subject, it’s Senate Democrats over judges, given that Republicans filibustered so successfully that Democrats wound up changing the rules to prevent the then-Republican minority from abusing its powers.

Nevertheless, perhaps mainly because the rules have changed, Trump has actually done just fine so far. His four lower-court judges confirmed so far may not seem like much, but that’s three more appellate judges and one more trial judge than the big fat zero Barack Obama had confirmed before September 2009. George W. Bush did a little better with four total judges seated through August 2001; Bill Clinton in 1993 didn’t get any confirmed until September.

Some of this is logistics, not politics. Every judge needs a confirmation hearing by the Senate Judiciary Committee, and that committee is unusually busy early in every presidency dealing with nominations for executive branch positions in the Department of Justice. Presidents are busy, too. Trump didn’t begin nominating lower court judges until a single one in March (already confirmed) and then several more in May. Since then, Trump has been nominating them at an unusually rapid pace. But the Senate just doesn’t move that quickly.

So Trump’s complaints about obstruction are almost completely without merit in this case, at least so far. And his bragging that he is an unusually accomplished president in his first seven months seems to rest heavily on his successful, but hardly unusual, nomination of a Supreme Court justice.

But conservatives should be happy; the Trump administration is being far more aggressive about filling judicial openings than the Obama administration ever was, and my impression is that conservatives who care about judicial issues are very, very pleased with his appellate choices so far.

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University. Readers may email him at jbernstein62@bloomberg.net.